How to understand the independent defense right of defense lawyers
The right of independent defense of criminal defense lawyers is an old topic. In the past, after discussion and even debate in the theoretical and academic circles, it seems that a * * * knowledge has been formed, but now it has become a new problem, mainly manifested in the case of criminal suspects and defendants pleading guilty, whether defense lawyers can plead not guilty. It is generally believed that even if a criminal suspect or defendant pleads guilty and punishes himself, the defense lawyer can still plead not guilty, because the defense lawyer has the right to defend independently. This statement seems reasonable, but it is not so simple after deep thinking. What is the defense lawyer's right of independent defense? This is a question that needs to be clarified first. From the meaning of "independent defense right", does it mean that defense lawyers can defend themselves completely independently in handling cases, without being bound by the will and will of criminal suspects and defendants, including putting forward completely different defense opinions from the parties who do not agree with them? For example, the defendant himself pleaded not guilty and asked his lawyer to defend him, but after reading the paper, meeting and studying the relevant laws and regulations, the lawyer thought the defendant was guilty. In this case, can the lawyer plead guilty independently regardless of the defendant's wishes? If so, is this the embodiment of "defense lawyer's right to defend independently"?
As early as 1980s and early 1990s, lawyers and lawyers almost formed the mainstream view that defense lawyers have the right of independent defense in criminal proceedings! This authoritative explanation is that lawyers are national legal workers, not spokespersons of the parties. No matter whether the parties plead guilty or not, lawyers should express their opinions independently on how to defend the case according to facts and laws, and are not bound and influenced by the parties.
However, in the mid-1990s, especially after the first major revision of 1996 Criminal Procedure Law and the promulgation of China's first lawyer's law, people reflected and questioned the former defense lawyers' right to independent defense: entrusted by criminal suspects and defendants, if defense lawyers do not listen to their opinions and defend themselves independently, including putting forward defense opinions that people disagree with, who is willing to pay for them? Even if legal aid lawyers can defend themselves independently, including putting forward defense opinions that criminal suspects and defendants disagree with, who wants to accept legal aid lawyers? Some people even think that defense lawyers cannot defend themselves independently against the will of the parties or without the constraints of the parties. Later, this view seems to have formed a * * * knowledge in the field of criminal defense lawyers, becoming the mainstream view, and the statement that defense lawyers have the right to defend independently is gradually marginalized.
Unexpectedly, since the implementation of the lenient system of confession and punishment, the independent defense right of defense lawyers has been put forward again and widely accepted by criminal defense lawyers, which has become the theoretical basis for lawyers to defend innocence in cases of confession and punishment.
So, how to understand the independent defense right of defense lawyers? Personally, I think this is a basic and fundamental issue involving the lawyer's defense system, and it is also a complex theoretical issue, which should be highly valued and strengthened. In my opinion, the independent defense right of defense lawyers should be grasped in a relatively independent sense, rather than understood and defined absolutely. Specifically, the defense of "three unifications" in the following three aspects can be regarded as the independent defense of defense lawyers:
1. Lawyers should base their defense on facts and laws. This is the fundamental requirement of Article 37 of the Criminal Procedure Law on the responsibility of defenders, that is, lawyers, as the main force of "defenders", should be based on facts and take the law as the criterion, and should not be interfered by other forces other than facts and laws. Therefore, Article 44 of the Criminal Procedure Law also requires defenders, including lawyers, not to defend against facts or laws. I want to emphasize that this is the core essence of the lawyer's defense independence or independent defense right. Defending on the basis of facts and taking the law as the criterion is the sacred duty entrusted to defense lawyers by law, and it is also the "amulet" and "shield" for lawyers to resist improper interference from all sides.
But if we only emphasize that lawyers' defense should be based on facts and take the law as the criterion, what is the difference between lawyers' defense and prosecutors and judges' handling cases?
The lawyer's defense should be beneficial to the client. This is another clear requirement of Article 37 of the Criminal Procedure Law on the responsibility of defenders, which shows that even if there are factual and legal basis, lawyers' defense should be beneficial to the parties, including "putting forward materials and opinions on the innocence, lightening or reducing criminal responsibility of criminal suspects and defendants" in entity and "safeguarding the litigation rights and other legitimate rights and interests of criminal suspects and defendants" in procedure, but not making defense or other words and deeds that are unfavorable to the parties. For example, the defendant privately admitted to the lawyer that he had committed the alleged crime and reported it to the court, or found evidence against the defendant in the case file and presented it in court. Although these are in line with "based on facts" and are conducive to punishing and cracking down on crimes, they are obviously unfavorable to the parties and fundamentally damage the foundation of the defense system. The laws of various countries are usually not allowed, unless there are special provisions in the law, such as the proviso of Article 48 of China's Criminal Procedure Law, defense lawyers can and should act against the parties. In addition, even if the defendant is guilty in fact and law, if he does not plead guilty, the lawyer cannot plead guilty independently. In short, unless otherwise stipulated by law, defense lawyers can only do things that are beneficial to the client, but not things that are unfavorable to the client.
Does this mean that lawyers can defend themselves or defend themselves independently as long as they have factual and legal basis and are beneficial to the defendant? My answer is yes or no, I must meet the following third requirement.
3. A lawyer's defense shall obtain the consent and recognition of the parties. This is the requirement of the special relationship between defense lawyer and client. In the early 1990s, the Criminal Committee of the National Lawyers Association held a business seminar in Xinqiao Hotel, and I was specifically responsible for this work. During the discussion, I raised a question for everyone to discuss. I asked the lawyers whether you communicated with the client about the defense opinions you were going to put forward in court before you appeared in court, and obtained the consent and recognition of the defendant. Or do you think defense lawyers should ask the defendant's consent or recognition for their defense opinions before appearing in court? I remember that there were thirty or forty lawyers involved in the discussion. Most of them think that the defendant's consent and recognition should be obtained, but some lawyers say that it is not necessary and should not be, because lawyers have the right to defend independently, and they think that if lawyers do this, it may bring risks to their practice.
At that time, I also clearly expressed my opinion that even if the lawyer's defense is beneficial to the defendant, he should obtain his consent or recognition, and he should not "love you without consultation." For example, the accusation is a crime, but in fact and legally it should be a crime B. Crime B is lighter than crime A. Can a lawyer put forward a defense opinion that does not constitute a crime but does? If so, is it not necessary to obtain the consent or approval of the defendant, because this defense is beneficial to the defendant? In fact, a few days ago, a young lawyer told me that he had recently handled a case accusing the defendant of contract fraud. The defendant pleaded not guilty, and neither did he. However, it has been more than half a year since the trial, and it is impossible to hear innocence from the court. After careful consideration, he decided to adjust his defense opinion to embezzlement, because embezzlement is more beneficial to the defendant in sentencing than contract fraud. At that time, the court was in a hurry, did not communicate with the defendant, and directly submitted a supplementary defense opinion on the crime of embezzlement to the court. Later, he went to see the defendant, who clearly disagreed with him to change his defense opinion and asked him to withdraw it.
It should not be difficult to understand why lawyers should obtain the consent or recognition of the parties in their defense. How did the lawyer get involved in the lawsuit? Only when people entrust or agree to the assignment of legal aid institutions can lawyers participate. Why do people entrust or agree with lawyers to participate in order to let lawyers safeguard their own interests! On this basis, can lawyers defend independently regardless of the wishes of others? It should be said that it is unlikely!
To sum up, I advocate that the independent defense of defense lawyers should be unified in the above three aspects, and there is an inherent logical relationship between these three aspects. The first aspect is that "lawyers' defense should be based on facts and take the law as the criterion", which is the basis and core, emphasizing that lawyers' defense should respect facts and laws, and in addition, it should not be interfered and influenced by any organ, group, social force or other factors, including the requirements of the parties against facts and laws. The second aspect is that "the lawyer's defense should be beneficial to the client" and the third aspect is that "the lawyer's defense should obtain the client's consent or recognition", which is based on the special relationship between the client and the defense lawyer. The defense should be beneficial to the client and should not do anything to hurt the client. However, whether it is favorable or unfavorable or harmful cannot be decided by the defense lawyer unilaterally, and it is necessary to communicate with the parties and obtain their consent or recognition.
02
Is the relationship between the defender and the client an agency relationship?
The second question I want to communicate with you is, is the relationship between defense lawyers and clients an agency relationship? And this problem is closely related to the first question above, the right of independent defense of defense lawyers. At present, lawyers, including criminal defense lawyers, have almost formed a general cognition of "yes". I often hear many defense lawyers speak or write articles saying that they or a lawyer represent criminal cases, and news reports will also say that the lawyer represented by a defendant is Zhang San or Li Si. Here, I would like to ask you to think about it: is the defense lawyer in a criminal case an agent relationship with the criminal suspect and defendant he defends?
In law, what is agency and the resulting agency relationship? Everyone is a legal person and should be aware of it. We don't talk about physical agents. As far as litigation agent is concerned, there are legal agents, entrusted agents or authorized agents. Legal agency is a provision made by law based on consanguinity and kinship, and there is no choice under legal conditions. Principal-agent or authorized agent is completely different, which comes from the entrustment or authorization of the parties. We are all well aware of civil and commercial cases. When a lawyer participates in litigation in the court, he must have a clear written authorization from the parties, indicating whether the lawyer is a general agent or a specially authorized agent. Without special authorization, he can only be the general agent and cannot enjoy the authority of the agent. So in civil and commercial cases, lawyers and parties are real agents, and lawyers are also real agents. In litigation, you can only participate in litigation and express your opinions within the scope of authorization.
However, everyone present today should be defense lawyers. Think about it. When you submit the entrustment formalities to the case-handling organ, is there a scope of authorization in the power of attorney? There is no scope of authorization in the power of attorney. Just say what crime Zhang San is suspected of or accused of, and at what stage of litigation he entrusted Li Si as his defender. That's all. It didn't say what Li Si could and couldn't do in the lawsuit. In that case, why can we say that defense lawyers and clients are agents? Where is the basis?
As we all know, legally speaking, there are two ways for lawyers to participate in litigation as defenders of criminal cases. One is the entrustment of the parties, as long as it is stated that a lawyer is entrusted as a defender at a certain stage of the lawsuit, and it is not necessary to specify the scope of authorization like a civil power of attorney; The other is appointed by the legal aid institution. As long as the legal aid object accepts or agrees with the lawyer to defend it, there is no question of the scope of authorization. Of course, the lack of authorization does not mean that lawyers are not bound in handling cases, do whatever they want, do not consider, respect or even ignore the wishes and interests of the parties, and are not bound by law. The discussion on the last question just now has actually answered this question. What a defense lawyer can do, what he should do, what he can't do and what he shouldn't do in defense should first be based on the provisions of the law, followed by the lawyer's professional ethics and practice discipline, which also includes the relationship between lawyer and client. Therefore, the viewpoint of "three unifications" was put forward above.
Why not ask defense lawyers to obtain the scope of authorization of the parties, but ask lawyers to obtain the scope of authorization in civil and commercial or other non-litigation activities? Actually, it's not hard to understand. Criminal law and criminal procedure belong to the category of public law, not the private rights of citizens, and the parties cannot be allowed to dispose of the practicing authority of defense lawyers themselves.
Secondly, as we all know, according to the Lawyers Law, the profession of lawyers has the mission of "three maintenance", that is, lawyers should safeguard the legitimate rights and interests of the parties, the correct implementation of the law and social fairness and justice. Whether litigation, non-litigation, civil and commercial, criminal, this is the same requirement for all lawyers. But these three maintenance requirements are the strongest in criminal proceedings. Defense lawyers are special in dealing with the relationship between the three aspects, and they cannot be allowed to conduct litigation completely within the scope of authorization of the parties.
Third, in a sense, lawyer's defense is a kind of restriction and supervision force set by the state for itself. Why does a country want criminal defense system? Why are defense lawyers allowed to provoke their own public security organs, procuratorial organs and even courts? It is precisely because the country realizes the need for such a force. On the one hand, it restricts and prevents the case-handling personnel of the case-handling organs from handling cases illegally and infringing on the legitimate rights and interests of the parties. On the other hand, the participation of lawyers itself reflects the legitimacy and fairness of the judiciary. Under such consideration, this matter cannot be completely pinned on the authorization of lawyers by the parties, but is stipulated by law to protect and standardize the practice of defense lawyers and realize the original legislative intention of establishing a defense system.
03
What is the litigation effect of the lawyer on duty and the defense lawyer signing the confession statement?
A few days ago, the Ministry of Justice and the Supreme People's Procuratorate held a training activity in the National Prosecutor's College, during which the course of "Three People Talking about Inspection, Debate and Trial" was specially organized. Miao, the director of the First Hall of the Supreme People's Procuratorate, the president of the First Court of High Law and Punishment, and I discussed some problems in the system of confession and punishment from different angles of the prosecution and the defense. Before the meeting, the organizer collected many questions from the students. On that day, let the three of us talk about the selected issues respectively. One of them, which I feel is a universal problem, is also here to communicate with you today. I noticed that some lawyer friends present today took part in that activity.
At that time, a question was raised: What is the litigation function of the lawyer on duty and the defense lawyer signing the confession and punishment statement? At the same time, it also tells us that students have formed different views on this issue. There is a view that the statement of confession and punishment is essentially an agreement reached between the criminal suspect and the procuratorate. The signature of the lawyer on duty or the defense lawyer belongs to the other party to the agreement, that is, the criminal suspect or the party who pleads guilty to a lighter punishment. My personal point of view is that just because the lawyer on duty or the defense lawyer signs the confession statement, it cannot be considered that the lawyer belongs to the party to the plea agreement. In my opinion, the subject of confession and punishment is always and only the suspect or the defendant himself. The signature of the lawyer on duty and the defense lawyer does not mean that the lawyer is a party or a party to the plea agreement. Lawyers are not suspected of committing crimes and have not been accused of committing crimes. How can we determine that he is the one who pleads guilty and punishes?
The second view is that the signature of the duty lawyer and the defense lawyer on the confession and punishment statement only shows that they are witnesses of the criminal suspect's signature behavior, and does not mean that they agree with the criminal suspect's attitude of confession and punishment. This is a very common understanding at present, and it is also the main reason why many lawyers say that lawyers enjoy the right of independent defense and can plead not guilty in the system of confession and punishment. Generally speaking, the lawyer's signature on the confession and punishment book is only a witness's role, which does not mean that the lawyer also thinks the suspect is guilty, so when the case reaches the trial stage, the lawyer can independently defend the innocence.
I don't agree with this view either. The lawyer on duty, or defense lawyer, participates in the case of confession and punishment, not just appearing at the scene when the criminal suspect signs the confession and punishment statement, witnessing the criminal suspect's autograph. Whether it is a lawyer on duty or a defense lawyer, according to the requirements of the Criminal Procedure Law and judicial interpretation, after participating in a case of confession and punishment, they must meet with the criminal suspect, consult the case file, study and form an opinion on whether the case is guilty or not through interviews and marking papers, and then fully communicate with the parties. After reaching an agreement on whether the criminal suspect is guilty, whether he should plead guilty and be given a lighter punishment, how to plead guilty, and what kind of result to strive for, after full communication and consultation with the case-handling organs and case-handling personnel, an agreement can finally be reached. The criminal suspect can sign the statement of pleading guilty and being given a lighter punishment, and the lawyer can sign the statement. The lawyer's signature on the affidavit should be the result of a series of previous work, not an isolated witness, including the lawyer agreeing to the confession and punishment of the suspect. If the lawyer disagrees and thinks that the suspect is innocent, the lawyer has the responsibility to inform the suspect not to plead guilty and admit punishment, and the lawyer himself may not sign the confession and admit punishment signed by the suspect. Imagine, since the lawyer thinks the suspect is innocent, but he signs the confession and repentance signed by the suspect, is this a responsible act?
Yesterday, a judge of a grass-roots court called me to discuss a case. One defendant pleaded guilty and was transferred to the court. The court tried, convicted and sentenced him to probation according to the case of guilty plea. After the judgment, it will be handed over to the community correction institution for execution. The community correction institution gets the enforcement notice and goes to the convicted defendant. As a result, the person who came said that he had not been convicted and sentenced, nor had he committed a crime, but the identity information of the defendant in the judgment was completely consistent with this person. Later, it was found that this person was impersonated by the real defendant, and the correction institution quickly reported it to the court, but at this time the real defendant had escaped and disappeared. This case of pleading guilty and admitting punishment is obviously a wrong case, and the prosecutor and judge handling the case must be responsible? Is the lawyer involved responsible? I think it must be responsible.
Then, what is the identity or litigation role of the lawyer on duty and the defense lawyer in signing the confession and punishment? Personally, I think it should be a "triple identity". First, the legal helpers or service providers of criminal suspects, whether they are duty lawyers or defense lawyers, have the right to do what they should do at the stage of examination and prosecution, which is the same as the legal judicial interpretation, that is, to provide criminal suspects with legal services in fact and in law, whether they are guilty, whether they should plead guilty and how to plead guilty and punish them. The second is whether the case-handling organ and its case-handling personnel handle the case according to law. For the criminal suspect who pleads guilty and admits punishment, if he has not entrusted a lawyer or been assigned a legal aid lawyer, why should the case-handling organ assign a lawyer on duty? In addition to helping criminal suspects, there is also a duty to restrain the case-handling organs and their case-handling personnel to prevent innocent people or criminal suspects who are unwilling to plead guilty and admit punishment, and of course, to prevent those who pleaded guilty and admitted punishment in the previous case from pretending to plead guilty and admit punishment. The third, of course, is also a witness who signed a confession and punishment statement by the criminal suspect. The unity of the three is the lawyer's litigation role in the case of confession and punishment.